Knight, Dean R.

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New Zealand: Rendering AccountDuring the COVID-19 PandemicDean R Knight 2021-04-19T09:00:52IntroductionJust over a year since the first outbreak in New Zealand, we cast our eye back andreflect on the government’s response to the Covid-19 pandemic. Without question,the response is a study in the wonders of modern government, given the magnitudeof the threat, the different dimensions of community wellbeing at stake and differentparts of government involved in the response. Public health guidance, clinical healthcare, economic support and stimulus, social welfare and support, border securityand surveillance. The list goes on. While trying to achieve the best outcomes forcommunities in these relatively unfamiliar emergency settings, the governmenthas also been expected to honour the usual civic expectations: constitutionality,legality, legitimacy, fairness – and kindness. And rightly so. It follows, too, that thegovernment was expected to explain its actions and be judged accordingly. It is thatphenomenon of rendering account, in a time of crisis, that I focus on in this note.StrategyNew Zealand’s success so far in stamping out the virus is well-known, althoughits ongoing elimination strategy is not without challenges (see, generally, Knight(2020); Knight (2021)). The country has managed to keep the number of diagnosedcases at just over 2,000 and number of deaths to 25. Much of that is attributed to thegovernment’s ‘go hard, go early’ response. An aggressive nationwide lockdown of 7weeks from late-March to mid-May 2020 broke the chain of community transmission.A border fortress was constructed, with mandatory state-managed quarantine for14 days on entry. Within this nationwide bubble, the country has been blessedwith long virus-free periods – interspersed with small outbreaks arising from borderbreaches. That is to be expected under the elimination strategy, which contemplatesa sophisticated form of ‘whack-a-mole’ if the virus re-emerges. Short-sharp regionallockdowns, temporary elevation of other precautions, super-charged contact tracingand testing, and forensic examination of transmission are all used to dampendown any flare-ups. New Zealand’s success so far can probably be explained bya mix of factors: late onset of the virus, early and aggressive lockdown, favourablegeographical settings, effective leadership, coherent communication and communitycooperation – as well as a good sprinkling of luck.- 1 -FrameworkThese outcomes were achieved using a multi-layered and evolving framework ofemergency legal powers. The main legal tool used was the power to issue healthorders and directions. Originally, these health orders were issued by the director-general of health under the long-standing special powers in the Health Act 1956 tocombat infectious diseases. In mid-2020, a more nuanced and sophisticated legalregime, the Covid-19 Public Health Response Act 2020 was passed, transferringthe primary power to make health orders (now Covid-19 orders) to a minister andwrapping the emergency directive powers with additional checks-and-balances andsafeguards. Notably, neither the original health orders nor the new Covid-19 ordersare immunised against the force of the New Zealand Bill of Rights Act 1990: if theyunjustifiably breach human rights, they can be invalidated.More generic emergency directive powers were also available under the CivilDefence Emergency Management Act 2002, activated by a state of nationalemergency in place from late-March 2020 to mid-May 2020. The EpidemicPreparedness Act 2006 triggered these emergency powers, through a declaration– still in force – of an epidemic; this declaration also enlivened dormant provisionsthroughout the statute book alleviating administrative hurdles and unlocked a (barelyused) Henry VIII power to modify primary legislation.At a community-wide level, health and Covid-19 orders reflected alert levels setby Cabinet under an extra-legal alert level framework. The system of four alertlevels – exhorting the general nature of risk and commensurate restrictions – stoodat the heart of an extremely powerful and effective communications strategy. Onthe ground, more surgical directive orders were also issued by health officials toparticular people and communities, especially to manage small flare-ups after thevirus occasionally broke through the border fortress.   AccountabilitySo, to what extent was the government held to account for the decisions it madeunder this framework of emergency powers? To answer this, we might think aboutaccountability as a relational concept, where a government actor is obligatedto explain what’s gone on to a particular forum, where the forum questions andpasses judgement, and where consequences (whether formal or informal) mayflow from that judgement (Bovens (2007)). In other words, accountability is a seriesof conversations which appraise the government’s actions. Those conversationswere many and varied during the pandemic. Accountability conversations are alsocoloured by the standards against which the actor will be judged by the forum.Broadly speaking, some of those conversations take on a political hue, some areframed in legal terms, and others focus on continuous improvement and efficacy –the democratic, constitutional, and learning perspectives of accountability.Democratic- 2 -Democratic accountability, both formal and informal, has been the most prominentmeans by which the government’s actions have been judged.Parliamentary proceedings were barely disrupted. The House of Representativesonly adjourned for just over a month during the nationwide level 4 lockdown in Marchand April 2020. When the House resumed its usual operations, interrogating theefficacy of the government’s response dominated its proceedings – in parliamentaryquestions, general and specific debates, and debates on pandemic-relatedlegislation. Resort to special logistical arrangements (reduced quorum, adjustmentsto proxy voting, physical distancing, etc) were not needed, other than for a couple ofweeks in total.   The Epidemic Response select committee served as our ‘Parliament-in-miniature’,while the House was adjourned and for a little time after. Chaired by the leader ofthe opposition and with an opposition majority, this specially-constituted committeewas quite effective in interrogating ministers, officials and experts on all aspectsof the government’s response and played an important agenda-setting role inpolitical discourse. Other select committees kept up their work and oversight ofgovernment as well. Especially notable – and quietly effective – was the scrutiny ofhealth and Covid-19 orders by the Regulations Review committee in accordancewith their standard remit over secondary legislation.  So, too, the Finance andExpenditure committee and its post-enactment inquiry into the operation of theCovid-19 Public Health Response Act 2020. The inquiry was mandated, based onsuggestions from scholars, after the draft legislation was rushed through withoutthe usual select committee and public scrutiny (the particular committee chosen forits cross-party expert membership, not particular subject alignment). The scrutinywork of subject-based select committees continues but the diminishing sense ofcrisis has sometimes seen partisan politics creep back in; for example, backbenchgovernment MPs were recently criticised for stonewalling the questioning of keyofficials – earning a rebuke from the Speaker.   More broadly, the government rendered account direct to the community – kanohiki te kanohi (face to face). Daily media briefings, watched religiously by a largeswathe of the public, saw the government interrogated deeply about all aspectsof the pandemic and response. Those briefings continue today, although lessfrequently. The prime minister, director-general and others supplemented officialbriefings with live updates on social media (including the attorney-general who tookto Facebook Live to give a detailed explanation of the legal basis for the lockdownwhen question marks had been raised). A whole-of-government website – ‘UniteAgainst Covid-19’ – stocked information on every aspect of the pandemic andresponse. All Cabinet papers and minutes during the pandemic were releasedmonth-by-month, with only minor redactions (apparently unprecedented amongstcomparable jurisdictions, although a routine practice that preceded the pandemic).Despite occasional protestations that the government was evading responsibility orconcern that briefings were unduly stage-managed, the reality is that the pandemicsupercharged a direct accountability conversation between government and publiclike never before.- 3 -And the people’s judgement was a positive one. A general election – the ultimatepolitical test – was held in October 2020 (slightly delayed due to a minor outbreakof the virus). Understandably framed as the Covid-19 election, the government’strack-record in combating the virus was the hot topic on the hustings. Prime MinisterJacinda Ardern and her Labour party was returned to power, increasing their supportfrom 36.9% to 50.0% — the first time a single party has achieved an outright majorityin over two decades of proportional representation. One of her minor coalitionpartners (NZ First) didn’t fare so well, missing out on re-election; another confidence-and-supply partner (Greens) increased their support and re-joined Labour ingovernment.ConstitutionalConstitutional accountability played a notable, but relatively minor, role duringthe pandemic. Most of the legal focus was directed at the legal authority forthe nationwide lockdown. Some questions have also bubbled up about theborder fortress, especially the effect on citizens’ right to return, but the legalimplications have not yet been litigated. The lack of resort to the courts to contest thegovernment’s actions perhaps says something about New Zealand’s constitutionalculture – a high degree of trust in government and instinct to contest policy throughpolitical means.In the main challenge, Borrowdale v Director-General [2020] NZHC 2090; [2020]2 NZLR 865, the High Court rejected a claim that health orders mandating thenationwide lockdown were ultra vires but accepted that some early messages to stayat home lacked the necessary legal underpinning (see Rodriguez Ferrere (2020);Geiringer and Geddis (2020); Knight (2020); Knight (2021). The nationwide lockdownwas implemented though: (a) a health order closing premises, other than essentialbusinesses, and prohibiting public congregation; and (b) another health order, issued9 days into the lockdown, formally requiring everyone in the country to isolate athome in their household bubbles, subject to narrow exceptions. The main argumentin Borrowdale was about whether the power in section 70(1)(f) of the Health Act1956 to ‘require persons …to be isolated [or] quarantined’ could be used to requirethe entire country to stay at home. Was it a narrow individualised power, only to beused on a case-by-case basis to isolate or quarantine those infected or suspectedof being infected? Or was it a broad power able to be used, as it was, universallyover the entire community? The Court accepted the latter interpretation was open,especially given the power’s emergency purpose, context and history. Significantly,the Court rejected an argument that statutory recognition of the principle of legalityin section 6 of Bill of Rights Act dictated a narrow, rights-consistent reading. But,while rights-demands did not narrow the gateway for accessing the emergencypowers, the Court rightly acknowledged that the exercise of those powers must berights-consistent. And the Court went on to observe the lockdown was ‘a necessary,reasonable and proportionate response to the Covid-19 crisis at that time’ (eventhough the point wasn’t contested in the judicial review proceedings). Other quibbleswith the terms of the health orders were also dismissed.The Court, however, found that the government’s messages to stay at homeduring the first 9 days of lockdown – before the health order formally requiring- 4 -isolation was issued – were unlawful. Urging people to stay at home in mediabriefings and speeches, the Court ruled, limited their mobility rights under theBill of Rights Act without the necessary legal mandate. In constitutional terms,the limitation on people’s freedom of movement was not prescribed by law, as itneeded to be if it was to operate as a justified limitation on protected rights (eventhough, in substantive terms, the limitation was justified). Central to this rulingwas the crucial finding that the words of the prime minister, director-general andpolice commissioner came with normative force; in other words, the messageswere ‘replete with commands’, ‘conveyed that there was a legal obligation onNew Zealanders to comply’, and were not merely advisory statements counsellingvoluntary compliance. Only a declaration was issued and it is not expected that thefinding has significant knock-on consequences; the police were not aggressivelyenforcing the lockdown in the early days and the handful of prosecutions appear tohave been for breaches of other legally authentic requirements, not the generic stay-at-home message. The Borrowdale case required the government to explain its theory of the legalunderpinnings of the lockdown. The government was successful in defending andjustifying most of its actions; only a bit of the legal foundation in the early daysproved fragile. Thus, the government was able shrug off the adverse appraisal –forgivable action during the early hectic days of lockdown and unlawfulness longsince remedied. Borrowdale has since appealed to the Court of Appeal, with ahearing still months away.A couple of other cases, Christiansen v Director-General of Health [2020] NZHC887;  [2020] 2 NZLR 566 and Hattie v Attorney-General (CIV-2019-404-303), calledon the government to explain refusals to grant compassionate exemptions to familymembers to visit dying relatives. The government’s actions were criticised by thecourts – both in terms of legality and basic fairness – and led to the governmentreviewing and improving its decision-making processes.LearningLearning accountability – systematic improvement through ongoing feedbackloops – is tricky to quantify. But there’s reason to believe this form of accountabilitywas especially rich throughout the pandemic. The government’s actions wereoften described, to borrow a rugby term, a ‘rolling maul’: the response continuallyevolved and morphed – in the light of reflexive self-appraisal, external quibbles andsuggestions, and improved appreciation of health risks and efficacy of precautions.Some of this change was no doubt also nudged along by the other forms ofaccountability, such as the political and the legal.We can point to, as examples, several formal reviews, addressing matters such aspersonal protective equipment, management of managed isolation and roll-out ofborder testing. Just recently, a standing advisory body of experts was commissionedto scrutinise the response on an ongoing basis. More subtle were conversationswith departments taking place beyond the public gaze and their role in improvinggovernment actions. The list of essential businesses allowed to operate duringthe nationwide lockdown was often updated to reflect anomalies pointed out. The- 5 -shape of alert level rules were revised to address concerns raised by businesses,community groups and scholars. MPs were given a hotline to pursue problemsraised by their constituents directly with mid-level departmental officials.In short, incremental improvement was common – and continues. Systemicimprovement has not always been flawless though; for example, sentinel testingof border workers did not roll out as swiftly and comprehensively as slated, evenafter deficiencies were identified. But accountability through learning has been a keyfeature of the government’s response.    ConclusionWe often worry that emergency conditions inevitably erode the accountability ofgovernment. Yet, it’s striking that accountability was not dodged or evaded in NewZealand. The government worked hard to render account about its actions; thereremained many and varied opportunities for its response to be interrogated andjudged. Sure, beneath this rough sketch of the chorus of accountability, inevitably,there were particular instances where accountability didn’t bite in the way thatwe might have hoped. But, in general terms, accountability was preserved andenhanced.My suspicion, too, is that this openness to responsibility was crucial in fortifyingthe social licence for the extreme measures the government took. In other words,the government bred legitimacy for its response through its open attitude toaccountability. This speaks, I think, to an aspect of constitutional culture in NewZealand – a sense of civic virtue that predates the pandemic but one that has beenrarefied throughout it.- 6 -

New Zealand: Rendering Account During the COVID-19 Pandemic

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New Zealand: Rendering Account During the COVID-19 Pandemic

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